Tribunal decisions

The decision

IAC-AH-KRL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10085/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 8th March 2017
On 4th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mr Al F
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Schwenk
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Afghanistan born on 3rd September 1993. The Appellant left Afghanistan on 29th June 2009 entering the UK on 27th or 28th June after staying in an unknown country for three days. He applied the following day for asylum. The application was refused but he was granted discretionary leave until 3rd March 2011 as an unaccompanied minor. Following further refusals his appeal was allowed on 23rd February 2012 for his circumstances to be considered in the light of DS (Afghanistan) and his case was remitted back to the Home Office for reconsideration. That reconsideration finally took place on 7th November 2014 when the Appellant’s appeal was refused by a Notice of Refusal.
2. Within that Notice of Refusal it was noted that the Appellant feared that if returned he would be in danger of being killed by his step-uncle over land that he had inherited and that his step-uncle was a powerful and influential person due to his role as a police commander and consequently the Appellant did not believe he would be able to seek protection from the Afghan authorities.
3. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Law sitting at Manchester on 25th February 2015. In a decision and reasons promulgated on 3rd March 2015 the Appellant’s appeal was allowed on all grounds.
4. On 9th March 2015 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. Those grounds made three contentions
(i) firstly that the judge had failed to provide adequate reasons for the decision;
(ii) that the conclusion in respect of the Appellant’s private life was materially flawed; and
(iii) it was arguable that the judge had erred in finding that the Appellant can qualify as a refugee.
5. On 23rd March 2015 Judge of the First-tier Tribunal Pirotta granted permission to appeal. That appeal came before Upper Tribunal Judge Kebede sitting at Manchester on 31st March 2016. In a decision and reasons promulgated on 13th April 2016 Judge Kebede found that the making of the decision of the First-tier Tribunal involved the making of an error of a point of law and allowed the appeal and set aside the decision. The appeal was remitted to the First-tier Tribunal.
6. On 8th July 2016 Judge of the First-tier Tribunal Lever heard the remitted appeal. In a decision and reasons promulgated on 27th July 2016 Judge Lever whilst dismissing the appeal on asylum grounds and finding that the Appellant was not entitled to humanitarian protection allowed the appeal under Article 8 of the ECHR outside of the Immigration Rules.
7. On 8th August 2016 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. On 18th August 2016 First-tier Tribunal Judge Pullig refused permission to appeal.
8. On 26th August 2016 the Secretary of State renewed her Grounds of Appeal to the Upper Tribunal setting out the basis upon which the Secretary of State considered the First-tier Tribunal’s assessment of Article 8 was incomplete.
9. On 4th October 2016 Upper Tribunal Judge Freeman granted permission to appeal. Judge Freeman noted that the Appellant had been lawfully here from 2009 to 2011 and that while he had leave to remain as an unaccompanied minor since then, though not unlawfully here pending the various appeals listed by the judge at paragraphs 3 and 4 of his decision, the Appellant’s status had been at best precarious. He noted that the judge was fully entitled to give some weight to Section 117B(2) and (3) and arguably, having found that the Appellant was not entitled to leave to remain under the Immigration Rules he should have started from the presumption that the maintenance of effective immigration control was in the public interest and gone on to consider paragraph 117B(4) before allowing the appeal.
10. It is against that lengthy background that the appeal comes back before me to consider whether or not there is a material error of law in Judge Lever’s decision. The Appellant is represented by Mr Schwenk. Mr Schwenk is familiar with this matter. He has been before the Tribunal on several occasions. The Secretary of State appears by her Home Office Presenting Officer Mr Harrison. Although this is an appeal by the Secretary of State for the sake of continuity through the appeal process Mr Faizy is referred to herein as the Appellant and the Secretary of State as the Respondent.
Submission/Discussion
11. It is Mr Harrison’s contention that the judge has failed to balance the Section 117 issues. He says no more than that merely relying on the Grounds of Appeal. Those grounds contend that the First-tier Tribunal Judge failed to consider the weight to be given to the public interest whatsoever despite a lengthy set of paragraphs setting out the parts of the case which went in the Appellant’s favour. Further whilst refusing permission First-tier Tribunal Judge Pullig stated that the First-tier Tribunal Judge was clearly aware of the public interest as Section 117 was considered and that there would be reintegration, that was not factored in anywhere in the proportionality assessment rendering it incomplete and unlawful. Further he contends that the First-tier Tribunal Judge also placed weight on immaterial matters when looking at the question of delay. Consequently he maintains that there was an incomplete assessment of Article 8 and he asked me to find that there is a material error of law.
12. Mr Schwenk in response submits that all the grounds amount to are a mere disagreement and that in granting permission Judge Freeman goes too far by stating that the starting point is paragraph 117B(1) alone. He points out that Judge Lever has acknowledged immigration control and the public interest and that Judge Freeman is wrong to comment that it is the first consideration. He points out that the judge has considered the correct part of the statute and that therefore there is no error of law. He asks me to dismiss the appeal.
The Law
13. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
14. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
15. Whilst noting the contentions of the Secretary of State the judge in this case has carried out a very thorough analysis. At paragraph 49 he starts by stating that he has looked at Section 117B and does not find that there are any factors that demonstrate the Appellant should be forcefully considered for removal. He has noted that the Appellant has been here lawfully, speaks very good English, is not financially a burden upon the state and has all the abilities to financially maintain himself and contribute positively to society. These are very positive findings of fact.
16. The suggestion that has been put is that the judge should look at paragraph 117B(1) first. That Section merely states that the maintenance of effective immigration controls is in the public interest. I agree with the contentions made by Mr Schwenk. It is a factor to be considered. It is not a paramount factor that overrules all others. In this case the judge has gone on and addressed it within paragraph 50 of his decision. He has stated
“The occasions where a person’s private circumstances should outweigh the public good in maintaining immigration control and a just system of law are bound to be few in number given the multiple methods of entry afforded within the terms of the Immigration Rules. However there are bound to be occasions that suggest on a proportionality basis that a removal of an individual would be disproportionate.”.
Thereafter the judge has gone on to analyse this against the individual circumstances in this particular case. He has carried out a very thorough analysis and has given due and proper consideration to Section 117B and consequently I am satisfied that the decision discloses no material error of law.
17. By way of completion the judge has also considered Article 8 outside the Rules at paragraph 40. He has given due consideration to the guidance set out in SS Congo and at paragraphs 41 to 43 has gone on to indicate why the Appellant cannot succeed under Article 8 within the Rules. Thereafter he has gone on to give due consideration to the Appellant’s prospective career as a professional boxer, noting that this is a career unavailable to him in Afghanistan and a career in which he has much potential. The Secretary of State does not dispute any of these features in the Appellant’s case. The judge acknowledges that this is a rare case in reaching his findings. Overall this is a very thorough analysis giving due, proper and careful consideration to the relevant factors to be considered when considering Article 8 outside the Rules. The decision consequently discloses no material error of law and the appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained.

Notice of Decision
The decision of the First-tier Tribunal Judge discloses no material error of law. The appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained.
No anonymity direction is made.

Signed Date 30th March 2017

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD
No application is made for a fee award and none is made.

Signed Date 30th March 2017

Deputy Upper Tribunal Judge D N Harris